United States District Court, D. New Mexico
JOEY M. GALLEGOS, Plaintiff,
LAS LOMAS APARTMENTS LIMITED PARTNERSHIP, a New Mexico Limited Partnership, Defendant.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Motion to Dismiss for
Failure to State a Claim filed by Las Lomas Apartments
Limited Partnership (“Las Lomas”). [Doc. 5]. The
Court, having considered the motion, briefs, and relevant
law, and being otherwise fully informed, finds that the
Motion is well-taken and will be granted.
October 24, 2013, during the course of his duties as a New
Mexico State Police trooper, Plaintiff Joey M. Gallegos went
to the Las Lomas Apartments, Apartment No. 323 (the
“Apartment”), in order to execute a warrant
against Rogelio Cisneros-Chavez. [Doc. 1-2, ¶ 3]. While
in the performance of his duties, Plaintiff was shot and
seriously and critically wounded by Mr. Cisneros-Chavez.
Apartment was leased to Angelica Romero, Mr.
Cisneros-Chavez's mother. Id., ¶ 4.
Defendant Las Lomas, through its management, was aware that
Mr. Cisneros-Chavez was not an authorized resident of the Los
Lomas Apartments, and was also aware of his frequency on the
premises, his residency there, and of his violent nature and
criminal record. Id., ¶ 5. Defendant had
previously removed him from the premises. Id
on the October 24, 2013 incident, on October 23, 2016,
Plaintiff filed suit against Defendant in the First Judicial
District Court, County of Sandoval, State of New Mexico.
[Doc. 1-2]. On January 11, 2017, Defendant removed the case
to federal court based on diversity of citizenship. [Doc. 1].
Complaint, Plaintiff alleges that Defendant negligently
failed to keep its premises safe for his use in the
performance of his duties as a New Mexico State Police
trooper, and as a result, he was shot and wounded by Mr.
Cisneros-Chavez while trying to execute the warrant against
him. Specifically, the Complaint alleges that Defendant
breached its duty of care by: (a) permitting Mr.
Cisneros-Chavez to come on the premises; (b) not removing him
from the premises; (c) permitting Ms. Romero and others to
continue to inhabit the Apartment in spite of the danger
their presence on the premises presented to others because of
the use of the Apartment by a known violent criminal; and (d)
failing to provide adequate security to monitor the premises
at all times and keep dangerous persons, and especially Mr.
Cisneros-Chavez, off the premises. Id. at ¶ 6.
January 20, 2017, Defendant filed a Motion to Dismiss the
Complaint pursuant to Fed.R.Civ.P. 12(b)(6). [Doc. 5].
Defendant opposes the motion. [Doc. 11].
Rule 12(b)(6), a Court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a
Rule 12(b)(6) motion tests the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994). The sufficiency of a
complaint is a question of law, and when considering a Rule
12(b)(6) motion, the Court must accept as true all well-pled
factual allegations in the complaint, view those allegations
in the light most favorable to the non-moving party, and draw
all reasonable inferences in the plaintiff's favor.
See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citation
omitted), cert. denied, 558 U.S. 1148 (2010).
complaint need not set forth detailed factual allegations,
yet a “pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of
action” is insufficient. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
survive a motion to dismiss pursuant to Rule 12(b)(6), a
plaintiff's complaint must contain sufficient facts that,
if assumed to be true, state a claim to relief that is
plausible on its face. See Twombly, 550 U.S. at 570;
Mink v. Knox 613 F.3d 995, 1000 (10th Cir. 2010).
“A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). “Thus, the mere
metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is
insufficient; the complainant must give the court reason to
believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims. Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (emphasis omitted). The Tenth Circuit has explained,
“[p]lausibility” in this context must refer to
the scope of the allegations in a complaint: If they are so
general that they encompass a wide swath of conduct, much of
it innocent, then the plaintiffs “have not nudged their
claims across the line from conceivable to plausible.”
The allegations must be enough that, if assumed ...